2024 (4) TMI 484 - AT - Customs

Validity Of Order-in-Appeal - Seeking amendment in the bills of entry u/s 149 of the Customs Act, 1962 (CA 62) - refund of excess duty paid - Re-classifying the goods by changing the CTH - Import of Electronic Parts of Lighting Equipment - erroneously declared under a wrong CTH 85122010/20 - same parts were imported earlier under the correct CTH 85129000 - HELD THAT - In the instant case the request for amending the CTH declared in the Bill of Entry would finally result in a refund. This would make it necessary to calculate the duties payable afresh. The redetermination of duty as a principle, would include determining the import permissibility of the revised CTH in terms of the EXIM policy and any other laws regulating imports/exports, determining duties now leviable on the goods on import (Basic, Additional, Anti-dumping, Safeguards etc.). Permissibility of various benefits under different schemes or applicability of any exemption notification benefits etc. The goods may require the value to be re-fixed based on the Tariff Values fixed for the changed CTH or to be scrutinized for the basis of duty calculation changing from specific duty to ad-valorem duty etc. Its only after this process is complete that the duty liability, which is required to be paid by the importer as per the revised CTH can be determined and the refund claim examined along with unjust enrichment etc. Hence the administrative action of amending the CTH in the BE would virtually amount to an order of reassessment by the same proper officer after the original assessment done had concluded the determination of the liability of the importer to pay duty and the goods have been cleared from Customs controls. Once assessment is concluded it should not be administratively tinkered with either at the behest of the importer or of the department, without it being challenged in appeal. It is also to be mentioned that although rectification of mistakes or clerical errors are permissible u/s 154 of the Customs Act, the Appellant has not used that provision to alter / rectify the BE. Hence the Appellant himself acknowledges that the change sought to be made in the BE is not merely an error or mistake. Rightly so as the amendment request is not for only one Bill of Entry but for Bills of Entry filed over a period of time. Even a bonafide error made over a period of time would be in the nature of negligence which in common parlance means and implies a failure to exercise due care, expected of a reasonable prudent person. If the goods are not available for verification or examination or testing as embodied in Section 17(4), the reassessment cannot be permitted. However, once a decision is taken by the proper officer to verify / examine or test goods, then, as per the rule of prudence in law, appellate power is not to be exercised by an Authority for the purpose of substituting one s subjective satisfaction with another, without there being any specific reason for such substitution. There are 3 methods provided in the Customs Act, for any modification or amendment to be made in any Bill of Entry. Hence an amendment application u/s 149 of Customs Act, 1962 can be filed to revise the classification in the Bill of Entry. We find that the present issue arises with an aim of the Appellant getting a refund of excess duty perceived to have been paid. From the inception of the Customs Act the assessment of imported goods was done by the proper officer . It is the Appellants contention that the Apex Court in ITC Ltd 2019 (9) TMI 802 - SUPREME COURT , has categorically observed that self-assessment could be modified either u/s 128 or under relevant provisions of the Act. According to them on a plain reading of the provisions of Section 149, it is clear that a Bill of Entry can be authorised to be amended even after the imported goods have been cleared for home consumption on the basis of documentary evidence that was in existence at the time the goods were cleared. The Appellant s claim to amend a document under the said section is not disputed. The question is whether an amendment facility permitted u/s 49 is among the relevant provisions of the Act that empowers and can be used as the route to review and undo the assessment already made, which assessment order as per the Hon ble Supreme Court s judgment in Flock India 2000 (8) TMI 88 - SUPREME COURT , is in the nature of execution of a decree/order . From the discussions above regarding the impact of a change of CTH declared in the Bill of Entry on the assessment already made, it appear that as per the Hon ble Supreme Court s judgement discussed above the request for change in CTH and consequently of a final assessment could only be made before a superior authority in appeal. In the light of the ratio of the judgments of the Hon ble Madras High Court in the case of Stanley Engineered Fastening India Pvt Ltd v. CC 2023 (3) TMI 846 - MADRAS HIGH COURT and Bharti Airtel v. UOI 2022 (2) TMI 154 - MADRAS HIGH COURT , the impugned order is set aside and the matter is remanded to the proper officer. He is directed to process the request of the appellant dated 13.9.2019 for amendment of the BE s as per section 149 of CA 62. On being satisfied he should re-assess the impugned goods to duty by passing a speaking order. After the re-assessment order is issued the appellant will be eligible to claim consequential refund, if any, as per law. The lower authority shall follow the principles of natural justice and afford a reasonable opportunity to the appellant to state their case both orally and in writing if they so wish, before finalizing the matter. The appellant should also co-operate with the adjudicating authority in completing the process expeditiously and in any case within ninety days of receipt of this order. The appeal is disposed of accordingly.

Summary

Issues Involved:
1. Amendment of Bills of Entry u/s 149 of the Customs Act, 1962.
2. Reassessment and classification of imported goods.
3. Eligibility for refund of excess customs duty paid.

Summary:

1. Amendment of Bills of Entry u/s 149 of the Customs Act, 1962:
The appellant, M/s. Valeo India Pvt. Ltd., sought to amend Bills of Entry (BE) under Section 149 of the Customs Act, 1962, to correct an erroneous classification of imported parts of lighting equipment. The initial classification under CTH 85122010/20 led to a higher customs duty, whereas the correct classification should have been under CTH 85129000. The request for amendment was initially rejected by the Assistant Commissioner and upheld by the Commissioner (Appeals).

2. Reassessment and Classification of Imported Goods:
The Assistant Commissioner rejected the amendment request, stating that the goods were rightly classified under CTH 85122020 as "other automobile lighting equipment" and that reassessment post-clearance is not permissible unless appealed. The appellant argued that the reassessment could be done under Section 149 based on documentary evidence existing at the time of clearance. The Tribunal examined whether changing the CTH post-assessment amounts to reassessment and found that such an amendment impacts the duty calculation, making it a substantive change rather than a procedural one.

3. Eligibility for Refund of Excess Customs Duty Paid:
The appellant's claim for a refund of excess duty paid was contingent on the amendment of the BE. The Tribunal noted that as per the Hon'ble Supreme Court's judgment in ITC Ltd. v. CCE, self-assessment could be modified under Section 128 or other relevant provisions of the Act. The Tribunal also considered various High Court judgments, including those from the jurisdictional Madras High Court, which allowed amendments under Section 149 for the purpose of claiming refunds.

Final Judgment:
The Tribunal set aside the impugned order and remanded the matter to the proper officer to process the appellant's request for amendment of the BE under Section 149 of the Customs Act, 1962. The proper officer is directed to reassess the goods and issue a speaking order, allowing the appellant to claim a consequential refund if applicable. The process should be completed within ninety days, following the principles of natural justice.